Cape Town City Council v Masitho and Others (CA9/1999) [2000] ZALAC 15 (28 June 2000)

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[2000] ZALAC 15
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Cape Town City Council v Masitho and Others (CA9/1999) [2000] ZALAC 15; (2000) 21 ILJ 1957 (LAC) (28 June 2000)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD AT CAPE
TOWN)
CASE
NO: CA9/1999
In the matter
between:
CAPE
TOWN CITY COUNCIL Appellant
and
THEMBILA
MARK MASITHO & OTHERS Respondents
JUDGMENT
NUGENT, AJA:
The
respondents in this appeal were dismissed from their employment as
ambulance personnel. They applied to the Labour Court for
relief,
alleging that their dismissal was unfair. The Labour Court (per
Mlambo J) upheld their claim, and ordered that they be reinstated,
but with a final warning effective from the date of the order. The
appellant now appeals against that decision.
The
appellant has a number of ambulance stations situated at various
places within the Cape Town metropolitan area. The eight
respondents,
and a certain Mr. Nongqokwana, were all employed by the
appellant as ambulance personnel, at the Khayelitsha sector station.
It
is not disputed that the duties of ambulance personnel were not
confined to responding to calls emanating from the particular area
in
which they were stationed. They were obliged to respond to all
instructions from the ambulance control centre, even if this required
them to travel outside their particular sector.
On
the evening of 22 January 1997 the respondents, and Mr Nongqokwana,
commenced their shift at 19h00. At the time their shift commenced,
there was confusion at the ambulance control centre, apparently
because of a shortage of ambulances, which had the result that the
ambulance personnel at Khayelitsha were called upon to respond to
calls outside their sector. This gave rise to considerable
unhappiness
amongst the personnel, and they, gathered in the kitchen
at the sector to express their concern. It is not necessary for
purposes
of this appeal to dwell upon the cause of their concern, for
whatever it was, they were not entitled to respond to it by
abandoning
their shift, which is what occurred.
A
certain Mr Pietersen, who was in charge of the Mitchells Plain sector
station, was requested by one of his superiors to go to the
Khayelitsha station, and attempt to resolve the matter. On his
arrival, he found the respondents gathered in the kitchen,
threatening
to abandon their shift. Mr Pietersen cautioned them
against doing so, pointing out that other mechanisms were available
to them
to resolve their grievance, and that they would be putting
lives at risk if they left the station. Unable to persuade them, he
then
left. Shortly thereafter, the respondents, and Mr Nongqokwana,
then abandoned their shift. The person who was in charge of the
Khayelitsha station at the time was a certain Mr Mkhubeleki. When
it became apparent to him that the respondents intended abandoning
their shift, he completed “sick leave” forms in respect of each
of them. Why he did so is not entirely clear, for it is quite
apparent that there were no grounds for any of them to take sick
leave.
Disciplinary
proceedings were then commenced by the appellant against the
respondents and Mr Nongqokwana. Although not framed in
precisely
those terms, essentially, it was alleged against all of them that
they had abandoned their duties without permission.
For reasons
which are not apparent from the record, separate hearings were held
in respect of the respondents on the one hand, and
Mr Nongqokwana on
the other.
The
hearing in relation to Mr Nongqokwana took place on 7 February 1997,
and was chaired by a certain Mr Slater. According to the
record of
the disciplinary hearing, Mr Nongqokwana said that he was not guilty
of the charge, but nevertheless acknowledge that he
had indeed
abandoned his shift, and said that although he “was not intimidated
in any way” he had “decided to go home with
the others in view of
the violent history of this particular group.” The chairman of
the disciplinary hearing found that he
was guilty of “absconding
from work after deciding that an instruction given by the Control
Room Officer was not to your liking”,
and he was given a warning.
His reasons for reaching that conclusion were recorded as follows:
“
This
was due to the fact that the Initiator did not submit any aggravating
circumstances, that the Defendant although on overtime
shift, still
did not have the right to terminate his duties and go home at will.
Furthermore he had choices at that time and instead
of going home
could have asked either Mr Mkhubukeli, or Mr Pietersen who had come
through from Mitchells plain to bring him to the
Station to complete
his shift in terms of the Standing Orders.”
The
disciplinary hearing in respect of the respondents took place over a
period of eight days between April and June 1997. The chairman
of
the hearing on this occasion was a certain Mr Pillay. The
respondents said they were not guilty of the charge, and said that
they had all shared in a meal on the evening in question, which had
made them all ill, and that is why they had gone off on sick
leave
after the shift commenced. Quite clearly that explanation was false.
They were all found guilty of absconding from their
duties, and
were dismissed.
At
the trial of the matter in the Labour Court, none of the respondents
gave evidence, and the untruthful account which they had given
at the
disciplinary hearing was not repeated. Mr Nongqokwana gave
evidence, in which he stated that the words attributed to him
in the
record of his disciplinary hearing, to the effect that he had left in
view of the “violent history” of the respondents
were not
correct. He said that he had been “afraid of the situation” but
nobody had intimidated him. Precisely what it was
in the
“situation” that had made him afraid was not explained in the
evidence, and nor is there anything in the evidence to suggest
that
he had any reason to be afraid.
The
learned judge in the court a quo found, correctly, that there had
been no justification for the personnel to have abandoned their
shift, and that their conduct in doing so was irresponsible.
However, the learned judge went on to find that the sanction that had
been imposed upon the respondents was unfair, bearing in mind that
ambulance personnel at the Mitchells Plain station had previously
been had been given a final warning for similar conduct, and Mr
Nongqokwana had also not been dismissed. In that respect the learned
judge said the following:
“
I
cannot however ignore the fact that employers are entitled to set
their own standards as regards discipline and punishment. It
is not
for this court to second guess the standards set by employers for
their employees. In this case the (appellant’s) standard
for a
similar transgression is a final written warning. Were it not for
this situation this court would have no hesitation in confirming
the
dismissals of the (respondents). The punishment meted out to
Nongqokwana is also relevant. There is no basis for the
differentiation
in punishment because he was as guilty as the others
who were dismissed. Under the circumstances the dismissal of the
applicants
was not fair. In view of the fact that Nongqokwana, who
was a guilty as the applicants, is still in employment as well as the
fact
that the Mitchells Plain employees were also not dismissed means
that in all fairness the applicants must be reinstated with a final
written warning which was imposed on the Mitchells plain employees.”
The
reference to the Mitchells Plain employees was a reference to certain
ambulance personnel at that station who had abandoned their
shift on
the pretext of being ill, and had been given a final warning after a
disciplinary hearing that took place during March 1997.
Fairness
generally requires that like cases should be dealt with alike. As
pointed out by Brassey, albeit in a different context,
in ‘The
Dismissal of Strikers’ (1990) 11 ILJ 213 at 229:
“
The
parity principle, a basic tenet of fairness, requires that like cases
should be treated alike: if two employees are caught committing
much
the same wrong, one should not be disciplined if the other goes free;
nor, if their personal circumstances are much the same,
should one be
more severely punished than the other.”
Similarly in
The
Post Office v Fennel
1981 IRLR 221
at 223, the following was
said, which was cited with approval in
Henred Freuhauf Trailers
(Pty) Ltd v National Union of Metalworkers of SA & Others
(1992) 13 ILJ 593 (LAC) at 600:
“
It
seems to me the expression equity as there used comprehends the
concept that employees who misbehave in much the same way should
have
meted out to them much the same punishment, and it seems to me that
an industrial tribunal is entitled to say, where that is
not done,
and one man is penalised much more heavily than others who have
committed similar offences in the past, the employer has
not acted
reasonably in treating whatever the offence is as a sufficient reason
for dismissal.”
There may be
valid grounds in a particular case to distinguish one employee from
another, albeit that they have engaged in the same
conduct, on the
basis of their respective records, or on the basis of other material
factors (see, for example,
National Union of Mineworkers &
Others v Amcoal Collieries & Industrial Operations Ltd
(1992)
13 ILJ 1449 (LAC) at 1453B;
National Union of Mineworkers &
Others v Free State Consolidated Gold Mines (Operations) Ltd -
President Steyn Mine; President
Brand Mine; Freddies Mine
(1993)
14 ILJ 341 (LAC) at 357J; le Roux & Van Niekerk: SA Law of
Unfair Dismissal 110-111) but in the absence of material
distinguishing features equity would generally demand parity of
treatment.
In SACCAWU &
Others v Irvin & Johnson
(1999) 8 BLLR 741
(LAC) at 751 B
this court reiterated that consistency is an element of disciplinary
fairness, and that it “is really the perception
of bias inherent in
selective discipline which makes it unfair”, but went on to observe
that the flexibility which is inherent
in the exercise of discretion
will inevitably create the potential for some inconsistency. I am
not at all sure that disciplinary
decisions involve the exercise of a
discretion, but even if that is so, fairness would seem to me to
generally require any such discretion
to be exercised consistently.
While it is true that an employer cannot be expected to continue
repeating a wrong decision in obeisance
to a principle of consistency
(751D), in my view the proper course in such cases is to let it be
known to employees clearly and in
advance that the earlier
application of disciplinary measures cannot be expected to be adhered
to in the future. Fairness, of course,
is a value judgment, to be
determined in the circumstances of the particular case, and for that
reason there is necessarily room
for flexibility, but where two
employees have committed the same wrong, and there is nothing else to
distinguish them, I can see
no reason why they ought not generally to
be dealt with in the same way, and I do not understand the decision
in that case to suggest
the contrary. Without that, employees will
inevitably, and in my view justifiably, consider themselves to be
aggrieved in consequence
of at least a perception of bias.
In
the present case, Mr Arendse SC, who appeared for the appellant,
submitted that the position of the respondents was distinguishable
from the employees at Mitchells Plain, and from Mr Nongqokwana.
The
features that were relied upon to distinguish the Mitchells plain
employees do not seem to me to be material. In that case, too,
the
ambulance personnel were found to have abandoned their shift without
justification, and in that respect they were no different
to the
respondents in this case.
But
that apart, in my view the evidence does not reveal any material
distinction between the respondents and Mr Nongqokwana, who was
equally culpable for abandoning his shift in precisely the same
circumstances. The suggestion that he had somehow distanced himself
from the conduct of the respondents is, in my view, not borne out by
the evidence. While it is true that he was not present with
the
respondents at the time that they first met in the kitchen, that was
merely coincidental. He was present when Mr Pietersen urged
the
personnel not to abandon their shift; left with the others; and had
as little justification for doing so as the respondents did.
It was
also submitted that Mr Nongqokwana was distinguishable from the rest
because he did not advance a false explanation for his
conduct at his
disciplinary hearing. While it is true that Mr Nongqokwana did not
advance the false excuse that he had been ill,
in my view that is not
a material distinction. While there might indeed be circumstances in
which the conduct of an employee at
a disciplinary hearing will
itself be relevant to whether the employment relationship can be
expected to continue, I do not think
they apply in the present case,
and that was in any even not a consideration that was taken into
account in the appellant’s decision
to dismiss the respondents.
They were dismissed solely because of the gravity of their
transgression, which applied equally to Mr
Nongqokwana (and to the
employees at Mitchells Plain).
In
my view the learned judge in the court a quo cannot be faulted for
finding that it was unfair to dismiss the respondents, when
neither
Mr Nongqokwana, nor the employees at Mitchells Plain, were dismissed
for precisely the same conduct. I hasten to add that
the fact that
consistency is called for from the appellant does not mean that,
having adopted one course in the past, it is forever
bound to adhere
to it. The value of consistency is that employees are entitled to
expect that like cases will be dealt with alike,
but they can have no
complaint if they are told clearly in advance that a former practice
will no longer be adhered to. I agree
with the learned judge in the
court a quo that the conduct of the respondents in the present case
was most irresponsible, but if
it is to warrant instant dismissal,
employees ought to be made clearly aware of that fact.
In
the circumstances, I can see no reason to interfere with the decision
of the court a quo, and the appeal ought to be dismissed.
No order
for costs was made in the court a quo, but as far as the appeal is
concerned, I can see no reason why the costs should
not follow the
result.
The
appeal is dismissed with costs.
R.W. NUGENT
ACTING JUDGE OF
APPEAL
R.M.M. ZONDO
JUDGE
PRESIDENT
C.R.
NICHOLSON
JUDGE
OF APPEAL
For
the Appellant: Adv. Nongqokwana. Arendse SC
Instructed by
Mallinicks
Inc, Cape Town.
For
the Respondent: Adv.
Instructed by
Hofmeyr
Herbstein Gihwala & Cluver Inc
Cape Town
Date
of Hearing:
Date
of Judgment: 28 June 2000